Terms & Conditions for Business Customers

Terms & Conditions for Business Customers of S’whales B.V. If there are discrepancies, the Dutch version of this page shall prevail.

Version of December 26, 2023

We kindly request that you carefully read these terms and conditions. By buying as a business customer via swhales.eu, you are agreeing to accept and comply with these terms and conditions.

Article 1 - Definitions and applicability

In these conditions, the following definitions apply:

a. Customer: any natural person or legal entity who acts in the exercise of their profession or business and is registered with the trade register of the Chamber of Commerce in the Netherlands or the Belgian Trade Register, or the Chamber of Commerce in France and who has a business account created at S’whales and enters into an agreement with S’whales or makes an offer to S’whales;
b. Day: calendar day;
c. S’whales: the private company S’whales bv, located in (4901HW) Oosterhout, Zandheuvel 52-B. Operating in the Netherlands, Belgium and France under VAT number: NL865720812B01 and, Chamber of Commerce from The Netherlands number 91638992 ;
d. Agreement: any Agreement concluded between S’whales and the Customer, any amendment or addition thereto, as well as all (legal) acts in preparation and implementation of that Agreement;
e. Product(s): any item offered, to be delivered, or delivered by S’whales on the basis of the Agreement or a product that can be equated with it based on popular views;
f. Website: the website(s) managed by S’whales and registered with the Chamber of Commerce of the Netherlands;
g. Conditions: these general terms and conditions.

2. These Terms and Conditions apply to every offer and Agreement between S’whales and a Customer, insofar as the parties have not expressly deviated from these Terms and Conditions in writing. By placing an order and/or making a purchase via the S’whales website, the Customer accepts these Terms and Conditions, as well as all other rights and obligations as stated in the offer.
3. These Terms and Conditions expressly do not apply to agreements with natural persons who do not act in the exercise of their profession or business.
4. The applicability of any purchasing or other conditions of the Customer is expressly rejected.
5. If one or more provisions in these Terms and Conditions are wholly or partially null and void or annulled at any time, the remainder of these Terms and Conditions will remain fully applicable.
6. If S’whales does not always insist on strict compliance with these Terms and Conditions, it does not mean that their provisions do not apply or that S’whales would lose the right to require strict compliance with these Terms and Conditions in other cases.

Article 2 - The offer

Every offer from S’whales on the website is without obligation.
Obvious mistakes or errors in the offer do not bind S’whales.
The prices stated on the Website in the offer of products or services include VAT. If applicable and under conditions, the stated price can be reduced to the amount excluding VAT with a separate statement of any VAT itself. The invoice is leading for the financial processing in the Customer’s administration.

Article 3 - The Agreement

The Agreement is concluded, subject to the provisions of paragraph 2, at the moment of acceptance by the Customer of the offer and compliance with the conditions set therein.
If the Customer has accepted the offer electronically, S’whales will immediately confirm receipt of the acceptance of the offer electronically.
Every Agreement is entered into under the suspensive condition of sufficient availability of the relevant Products and/or services.
Complaints about the execution of the Agreement must be submitted fully and clearly described to S’whales within a reasonable time, after the Customer has discovered the defects.

Article 4 - Payment

Unless otherwise stated in the Agreement or additional conditions, the amounts owed by the Customer must be paid within 14 days after the conclusion of the Agreement into the account number specified by S’whales.
S’whales has the right to carry out a credit check in advance to determine whether the Customer can meet his payment obligation. S’whales takes into account all facts and factors that are important for a thorough assessment of the Customer’s creditworthiness and the responsible conclusion of the Agreement. If the credit check results in a negative assessment, S’whales may refuse an order or request or attach special conditions to the execution of the Agreement, such as advance payment of the amounts due. If the Customer cannot comply with this, no Agreement will be concluded. For such an advance payment, the delivery time will commence when full payment has been received by S’whales.
S’whales may set a maximum on the total amount of the monthly payment referred to in paragraph 2 of this article.
If the payment term is exceeded, the Customer owes statutory interest for commercial transactions on the amount still owed and S’whales may charge the extrajudicial collection costs it has incurred. These collection costs amount to a maximum of: 15% on outstanding amounts up to € 2,500; 10% on the next € 2,500 and 5% on the next € 5,000 with a minimum of € 40.
If the Customer is in default or defaults in the (timely) fulfillment of its obligations, S’whales has the right to charge the Customer the reasonable costs stated in advance to obtain payment out of court.
The Customer is not entitled to offset amounts owed to S’whales.
Objections to the amount of an invoice, a defect found, or discrepancy in the delivery, quantities or specifications do not suspend the payment obligation.
The Customer has the obligation to immediately report inaccuracies and/or changes in payment details provided or mentionned to S’whales.

Article 5 - Retention of title

All Products delivered by S’whales in the context of the Agreement remain the property of S’whales until the Customer has properly fulfilled all obligations under the Agreement(s) concluded with S’whales, including the purchase price, any pursuant to these Terms and Conditions or the Agreement on surcharges, interest, taxes, costs and damages.
Products supplied by S’whales, which are subject to retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Customer is not authorized to pledge or encumber in any other way the Products subject to retention of title.
The Customer must always do everything that can reasonably be expected of him to safeguard the ownership rights of S’whales.
If third parties seize the Products delivered under retention of title, or wish to establish or enforce rights thereon, or if bankruptcy or another circumstance occurs as a result of which the Customer can no longer freely dispose of his assets, then the Customer is obliged to inform S’whales, thereof, immediately and return the Products still belonging to S’whales to S’whales at its own expense.
In the event that S’whales wishes to exercise its ownership rights referred to in this article, the Customer gives in advance unconditional and irrevocable permission to S’whales and third parties to be designated by S’whales to enter all those places where S’whales’ properties are located and to take back those Products.

Article 6 - Delivery and execution

S’whales will exercise due care when receiving and executing orders for Products.
In principle, the place of delivery is the Customer’s address that is linked to its Chamber of Commerce registration (in the Netherlands) or to its registration in the Belgian trade register or to its Chamber of Commerce registration (in France). Only after verification of the business account has taken place can the Customer inform the company of another place of delivery.
Taking into account what is stated in Article 2 of these Terms and Conditions, S’whales will execute accepted orders as quickly as possible. The delivery times stated on the Website are not strict deadlines.
If delivery is delayed, or if an order cannot be fulfilled or can only be partially fulfilled, the Customer will be notified of this no later than one month after placing the order. In that case, the Customer has the right to terminate the Agreement without costs. S’whales cannot be held liable for any damage if a delivery period is exceeded.
In the event of dissolution in accordance with the previous paragraph, S’whales will refund the amount that the Customer has already paid in advance as soon as possible, but no later than 30 days after dissolution.
All risks of whatever nature (including the risk of damage and/or loss of Products) rest with S’whales until the moment of delivery at the address stated in paragraph 2, unless expressly agreed otherwise. A statement from the carrier (for example a Track & Trace code) is sufficient for S’whales to prove that the Product has been delivered to the specified delivery address.
S’whales may determine that, depending on, among other things, the amount of the order amount, the Customer is obliged to sign for proper receipt.
The Customer is obliged to check the numbers and quality of the Products immediately after delivery or (if applicable) prior to signing for receipt. In case of any visible discrepancies or defects, the Customer shall notify S’whales thereof in writing within 24 hours. Thereafter, the Customer cannot complain about any discrepancies or defects in the delivery.
Any invisible defects must be reported to S’whales in writing immediately after their discovery, but in any case within 5 working days of discovery, on pain of forfeiting the right to still make these complaints known. Such notification must contain a detailed description of the defect. The Customer must thereby give S’whales the opportunity to investigate the defect (or have it investigated). If a defect is reported later, the Customer is no longer entitled to repair, replacement or compensation.

Article 7 - Right of withdrawal

When purchasing Products, the Customer has the option to terminate the Agreement without giving reasons for 14 days (the right of withdrawal). This period commences on the day after receipt of the Product by the Customer or a representative designated in advance by the Customer and made known to S’whales.
The Customer will unambiguously inform S’whales via info@swhales.eu of the termination of the Agreement. As soon as possible, but within 14 days after termination of the Agreement, the Customer will return the Product or hand it over to (an authorised representative) of S’whales. The Customer bears the costs and risk of returning the Product.
During the right of withdrawal, the Customer will handle the Product and its packaging with care. The Customer will only unpack or use the Product to the extent necessary to determine the nature, characteristics and operation of the product. If the Customer exercises his right of withdrawal, he will return the Product to S’whales with all accessories supplied and – if reasonably possible – in the original condition and packaging, in accordance with the reasonable and clear instructions provided by S’whales. S’whales has the option not to return a Product for justified reasons.
The Customer is liable to S’whales for any reduction in value of the Product that is the result of handling the Product that goes beyond what is permitted in paragraph 3.

Article 8 - Guarantees

S’whales guarantees that the Products and/or services comply with the Agreement and the reasonable requirements of reliability and/or usability and the legal provisions and/or government regulations in force on the date of the conclusion of the Agreement.
The warranty referred to in this article 8 is equal to the manufacturer’s warranty offered by the manufacturer of the Products.
The warranty does not cover defects in the items that arise as a result of normal wear and tear, or due to damage resulting from circumstances over which S’whales has no influence, including weather conditions or damage incurred during transport by the Customer.
Any form of warranty will lapse if the item has been used incorrectly or carelessly and/or if it has been incorrectly stored or maintained by the Customer and/or third parties.

Article 9 - Liability

Any liability for damage is excluded by S’whales, except for damage resulting from intent or deliberate recklessness on the part of S’whales, or and insofar as damage cannot be excluded by law.
If there is any liability, S’whales is only liable for direct damage. Liability for indirect damage, including lost profits, consequential damage, losses suffered, missed savings and damage due to business stagnation, is expressly excluded.
Direct damage means exclusively the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these Terms and Conditions, any reasonable costs incurred to ensure that the defective performance of S’whales complies with the Agreement, insofar as they can be attributed to S’whales and reasonable costs incurred to prevent or limit direct damage as referred to in these Terms and Conditions.
Any liability for direct damage of S’whales towards the Customer, on whatever grounds, is limited per event (whereby a related series of events counts as one event) to the invoice amount actually paid by the Customer to S’whales for the relevant month in which the damage has occurred including shipping costs.
In any case, S’whales’s liability is always limited to the amount paid out by the insurer in a specific claim.
S’whales is not liable for damage of any nature whatsoever caused by S’whales relying on incorrect and/or incomplete information provided by or on behalf of the Customer.

Article 10 - Indemnity

The Customer indemnifies S’whales against any claims from third parties on any legal basis who suffer damage in connection with the execution of the Agreement and the cause of which is not attributable to S’whales.
If S’whales is held liable by third parties for this reason, the Customer is obliged to assist S’whales both extrajudicially and in court and to immediately do everything that may be expected of him in that case. If the Customer fails to take adequate measures, S’whales can do so itself without notice of default. All costs and damage incurred by S’whales and third parties, as a result, are entirely at the expense and risk of the Customer.

Article 11 - Force majeure

S’whales is not obliged to fulfill any obligation towards the Customer if he is prevented from doing so as a result of a circumstance that is not attributable to a fault and is not his responsibility under the law, a legal act or generally accepted views.
In these Terms and Conditions, force majeure means, in addition to what is understood in law and case law, all external causes, foreseen and unforeseen, over which S’whales has no influence, as a result of which S’whales is unable to fulfill its obligations to come. S’whales also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the Agreement occurs after S’whales should have fulfilled its obligation.
S’whales may suspend the obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than two months, either party can terminate the Agreement, without obligation to compensate the other party for damages.
Insofar as S’whales has already partially fulfilled its obligations under the Agreement at the time of the occurrence of force majeure or will be able to fulfill them, and independent value is attributed to the respective part to be fulfilled, S’whales can invoice part separately. The Customer is obliged to pay this invoice as if it were a separate Agreement.

Article 12 - Applicable law and disputes

All offers from S’whales and Agreements between S’whales and the Customer to which these Terms and Conditions apply are exclusively governed by Dutch law. Dutch law also applies if the Agreement is fully or partially implemented abroad.
The applicability of the Vienna Sales Convention, the provisions in Book 7 of the Civil Code and Articles 6:227b paragraph 1 and 6:227c of the Dutch Civil Code are expressly excluded.
All disputes arising from offers or Agreements, however named, will be submitted exclusively to the judgment of the competent court in Utrecht (the Netherlands).
Parties will only appeal to the court after they have made every effort to settle a dispute by mutual agreement.

Article 13 - Changes to conditions

S’whales reserves the right to unilaterally change these Terms and Conditions.
The version that applied at the time the relevant legal relationship with S’whales was established always applies. The Customer is advised to regularly check the Terms and Conditions for changes.

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